This article was submitted by the plantiff to Judge Penick in the TRO
clarification hearing and it was cited by the Judge in his clarification
ruling on February 15, 2000. This article is something that anyone who is
engaged in picketing against the Co$ should acquaint themselves with to see
the direction in which the courts are heading in the US.

that may terrorize a child." ... Although some precedent exists to
support a secondary effects defense for picketing regulations, the
generally lukewarm court reac tion indicates that this doctrine
might not justify a restriction like the Lincoln ordinance in
Olmer. ...

TEXT: [*272]
Introduction
Simple yet powerful, picketing is a key form of free speech that
must be both protected and protected against. In recent years, anti-
abortion protestors have become some of the most vocal and well-or
ganized picketers. The latest battlefields of their continuing
crusade spread beyond the well-trod territory surrounding abortion
clinics. Picketing, protesters have learned, attracts attention.

Picketing in ar eas not known for protests - residential streets,
nonmedical busi nesses, and schools - can attract even more
attention. Doctors' homes bear the brunt of this new wave of picket
lines, but a few com munities must deal with harassing and coercive
protests on less-famil iar constitutional ground, such as the
sidewalks surrounding churches. n1 When protesters target a church
the questions that arise implicate not only where to draw new lines
in the sandy dominion between privacy and speech, but also between
speech and constitu tional rights such as the freedom of religion.

Courts already institute limits on the First Amendment when it
interferes with the enjoyment of one's physical home; n2 some argue
similar restrictions should pro tect one's spiritual home as well.

- - -Footnotes- - -
n1. See infra notes 6-9 and accompanying text.

n2. See infra Part II.

- -End Footnotes- -
Part I of this Note examines reasons why anti-abortion protestors
and other activists target institutions such as churches, and
different communities' attempts to stop this focused picketing.

Part II discusses the Supreme Court's free speech doctrine,
focusing on cases involving targeted picketing outside non-
commercial sites, such as doctors' resi dences. Parts III and IV
discuss the inconclusive state of the current case law as to the
question of whether restrictions on church picketing are
constitutional. These sections conclude that, based on indications
from lower courts and an extrapolation of related Supreme Court
cases, such ordinances indeed may pass First Amendment muster as
long as they are narrowly tailored. Finally, Part V cautions that
several of the possible doctrines that potentially justify the
expansion of pick eting restrictions away from residences could
compromise important free speech values, and presents an
alternative.

[*273]
I
Background
A. Anti-Abortion Protests Move to New Targets
Protesting outside abortion clinics is more difficult today than a
few years ago. Tough federal legislation spurred in part by reports
of violence outside abortion clinics n3 and unfavorable court
rulings n4 sty mies the aggressive picketing of the past. Reluctant
to risk stiff pun ishments, such as ten years in prison and a $
250,000 fine, n5 potential participants in large anti-abortion
protests now either stay home or look for less risky options. n6
Rather than discontinue their mission, the most ardent protestors
increasingly turn their attention away from clinics to what some
call the abortion rights movement's weak link: the individual
doctors who perform such procedures. n7 Protestors now routinely
picket doctors' residences n8 and increasingly focus on aspects of
doctors' lives unrelated to their practice. n9
- - -Footnotes- - -
n3. President Clinton signed the Freedom of Access to Clinic
Entrances Act (FACE), Pub. L. No. 103-259, 3, 108 Stat. 694
(codified at 18 U.S.C. 248 (1994)), into law in 1994. See Ruth
Marcus, President Signs Clinic Access Law, Foes File Lawsuit, Wash.

Post, May 27, 1994, at A10. The Act provides for criminal sanctions
against anyone who:

By force or threat of force or by physical obstruction,
intentionally in jures, intimidates or interferes with or attempts
to injure, intimidate or in terfere with any person because that
person is or has been, or in order to intimidate such person or any
other person or any class of persons from, obtaining or providing
reproductive health services.

n5. See 18 U.S.C. 248(b). The statute provides for jail terms up to
10 years if the restricted conduct results in bodily injury; for
noninjurious conduct the statute provides terms of up to one year
for the first offense and up to three years for subsequent
offenses.

n6. See Richard A. Serrano, Law Protecting Abortion Clinics Thwarts
Protests, L.A. Times, Dec. 8, 1996, at A1 (describing how anti-
abortion protest leaders today "find it increasingly difficult to
recruit volunteers willing to risk violating federal law"). One
Florida anti-abor tion activist told a newspaper reporter that it
was "'futile to go with a handful of people to sit down in front of
an abortion clinic because you'll be in jail in 20 minutes.'"

Andrew Conte, Shifting Tactics, Stuart News/Port St. Lucie News
(Stuart, Fla.), Oct. 11, 1998, at A1, available in LEXIS, News
Library (quoting statement of Cliff Beckett). The situation led
that particular protestor to open a traveling counseling service
with his wife rather than continue picketing. See id.

"[Our group] targets abortionists to expose them . . . . We follow
them everywhere and tell everyone who cares to listen that they
kill children for a living." Id.

- -End Footnotes- -
[*274] A widespread strategy in this new battlefront is the
exposure cam paign designed to make life uncomfortable for
abortion-providing doctors and their families. n10 Such tactics
range from the relatively peaceful to outright harassment.

Protestors in different communities have printed wanted posters
labeling doctors as child killers, followed these doctors around
town, picketed their homes, disturbed their neighbors, and in some
cases even threatened their children and spouses. n11 An infamous
book by Chicago anti-abortion activist Joseph Scheidler entitled
Closed: 99 Ways to Stop Abortion n12 endorses picketing doctors'
homes as a way to warn other abortion-performing doctors of the
risks in providing this service. n13 Many anti-abortion groups
take Scheidler's advice to heart. In California, protestors
blocked the path of one doctor's car, slashed his tires, picketed
his house, held up signs comparing the doctor to serial killer
Jeffrey Dahmer, and harassed his wife at a shopping mall. n14 A
group of Dallas anti-abortion activists or ganized daily
demonstrations in front of a doctor's home, his work place, his
wife's workplace, and the couple's church. n15 The application of
these extreme measures has not escaped the eye of lo cal
legislators.

98012100V34. Scheidler says he has "shut down a lot of abortion
clinics through persuasion." Id.

n14. See Benjamin Pimentel, Operation Rescue Loses in Court, S.F.

Chron., Jan. 9, 1997, at A19.

n15. See Tompkins v. Cyr, 995 F. Supp. 664, 671-73 (N.D. Tex.

1998). The protestors used a telephone hotline to let members of
the group know where and when to meet each day. See id. One
protestor rushed at the doctor's wife as she went to get her mail
and said, "'Stop the killing now. Aren't you afraid, Mrs. Tompkins,
I'm going to shoot you now?'" Id. (quoting statement of Tomanek).

- -End Footnotes- -
B. Cities React to Picketing
As anti-abortion protests began to increase in residential areas,
cities quickly started to use existing laws or enact new ones to
restrict such picketing. n16 Courts usually uphold these
residential picketing bans unless they appear to restrict protests
more than necessary. n17 [*275] However, protestors can harass
and picket doctors anywhere. Just as laws protecting abortion
clinics merely move the location of the pick eting, ordinances
creating buffer zones around residences likely will encourage
protestors to find new ground for getting out their message. These
residential ordinances will drive dedicated picketers to sidewalks
of the areas previously thought immune to such tactics. n18
- - -Footnotes- - -
n16. See, e.g., Dan Luzadder, Panel Backs Limits on Pickets:

n17. See Abdon M. Pallasch & David Mendell, Protesters on Fine Line
When Target Is a Home: Policy Shift Pushing City into Rights
Debate, Chi. Trib., July 26, 1998, 4, at 1 ("Illinois law bans
pickets outside homes unless those homes double as businesses, and
the U.S. Supreme Court has upheld such bans."). Courts find some
such ordinances too broad, however. See, e.g., Judge Rules Against
Bangor Picketing Law, Portland Press Herald, Dec. 13, 1996, at 5B
("Bangor's ordinance against targeted residential picketing is
unconstitu tional, a judge ruled this week in the case of two anti-
abortion protesters who said they broke the new law in order to
test it in court."); Editorial, Protest, Harassment Two Different
Things, Omaha World Herald, Feb. 3, 1997, at 14 ("Nebraskans lost
some of their legal protection against harassment when U.S.

District Judge Warren Urbom ruled that it's un constitutional for
the state to prohibit protesters from picketing at a person's
residence.").

n18. See Morning Edition (NPR radio broadcast, Aug. 11, 1994),
available in 1994 WL 8690168 (discussing one anti-abortion protest
group's tactic of picketing doctors wherever the doctors go). Roy
McMillan, a member of the Mississippi group, said he and the others
"want everyone in the state to know the face and the name of the
abortionist." Id. In at least a few communities, protestors have
decided to target churches where abortion doc tors worship. See
Tompkins, 995 F. Supp. at 671-73.

- -End Footnotes- -
1. Prairie Village, Kansas
While many states prohibit physical disruption of church serv ices,
n19 the Kansas town of Prairie Village enacted what appears to be
the first challenged ordinance that facially prohibits all
picketing outside both residences and churches. n20 The Kansas
Supreme Court visited the matter in City of Prairie Village v.

Hogan. n21 In Hogan, police arrested Theodore T. Hogan on Sunday
morning, March 15, 1992 for picketing "before or about a church."

n22 Officials observed Hogan walking a route that twice took him
several blocks north and south of a church on the opposite side of
the street. n23 Hogan carried with him a sign expressing anti-
abortion text and photographs. n24 He testified that he chose that
particular area for his protest "because it would up my ante of
Christians on their way to and from church," but he also hoped
nonchurchgoers driving along the street would see his message. n25
The prosecution presented no evidence that Hogan stopped near the
church for any length of time or bothered anyone in particular,
although police said a few people may have crossed the street to
avoid Hogan when the police were questioning him. n26
- - -Footnotes- - -
n19. See infra Part III.A.

n20. See Prairie Village, Kan., Mun. Code, tit. 10, ch. 10.04.010
(1992), quoted in City of Prairie Village v. Hogan, 855 P.2d 949,
950 (Kan. 1993). The ordinance makes it unlawful for "any person to
engage in picketing before or about the residence of any individual
in the city, or before or about any church in the city." City of
Prairie Village v. Hogan, 855 P.2d 949, 950 (Kan. 1993) (internal
quotation marks omitted).

n21. 855 P.2d 949 (Kan. 1993).

n22. Id. at 950.

n23. See id. at 951.

n24. See id.

n25. Id.

n26. See id.

- -End Footnotes- -
[*276] Both a municipal court and state district court found
Hogan guilty and fined him $ 300. n27 Hogan appealed to the Kansas
Supreme Court, n28 which ruled that any statute must be construed
narrowly when it appears "facially overbroad" and could reach
conduct pro tected by the First Amendment. n29 The court then
limited the statute accordingly, holding that the Prairie Village
ordinance banned only focused picketing in front of a particular
residence or church and, citing the United States Supreme Court's
decision in Frisby v. Shultz, n30 held that merely marching
through a neighborhood did not constitute focused picketing in
front of a particular building. n31 Disagreeing with a lower
court, the Kansas Supreme Court found that Hogan's picket route
did not constitute picketing in front of a particular place under
the ordinance. n32 Because Hogan was not found in violation of the
ordinance, the court declined to rule on the constitutionality of
the law. n33
- - -Footnotes- - -
n27. See id. at 950.

n28. See id.

n29. See id. at 952.

n30. 487 U.S. 474 (1988); see also discussion infra Part II.B.

n31. See Hogan, 855 P.2d at 953.

n32. See id. at 954.

n33. See id.

- -End Footnotes- -
2. Lincoln, Nebraska
A federal district court in Nebraska, however, found itself facing
the question of the constitutionality of such church picketing ordi
nances. For twenty-two months, a group of Omaha abortion protes
tors, known as "Rescue the Heartland," targeted a Presbyterian
church in Lincoln where a doctor who performed abortions served as
a church elder. n34 Every Sunday between February 1997 and January
1999, a group of six to twelve protestors gathered outside the
church entrances displaying graphic signs and enlarged photographs
of aborted fetuses. n35 As in Hogan, the local police saw "'nothing
that [they] felt rose to the level of something for instance like
terroristic threats or disturbing the peace.'" n36 The city's
police chief later told the city council that officers did not
personally see anyone being [*277] chased, blocked, or impeded
even during plainclothes patrols of the neighborhood during the
weekly demonstrations. n37
- - -Footnotes- - -
n34. See Aaron Sanderford, In Church's War with Protesters, Both
Sides Aim to Protect Chil dren, Lincoln J. Star, June 29, 1998, at
1A. Soon after the court battle described infra notes 52-55 and
accompanying text, the protestors stated they would discontinue the
weekly protests because the doctor no longer performed abortions in
Omaha. See Susan Szalewski, Abortion Protests End Outside Church,
Omaha World-Herald, Jan. 4, 1999, at 11.

n35. See Joe Duggan, Church Asking City for Help with Anti-Abortion
Protestors, Lincoln J. Star, June 20, 1998, at A1; Szalewski, supra
note 34.

- -End Footnotes- -
Church members, however, charged that the protestors directed
verbal and visual attacks at children as they entered the church
with their families. One couple said that a protestor walked into
the street while their van stopped for a traffic light, and placed
a graphic poster near the back window of the van where the children
sat n38 with their heads down in an attempt to avoid the sight. n39
Another church mem ber said the protestors regularly would
videotape cars driving into the church parking lot. n40 When the
member asked a protestor about this practice, she was told the
tapes would be used to look up addresses from license plate
numbers. n41 Although the protestors agreed to stay away from one
of the church's entrances, their presence at the en trance to the
parking lot continued to create a gauntlet that all the
congregation's children had to pass through. n42 One nine-year-old
child said that a protestor "stuck a bloody baby picture" in front
of his face. n43 "I have had some bad times in my life, but that
was the worst," he said. n44 At least fifteen families, most with
children, eventually left the church because of the picketing. n45
- - -Footnotes- - -
n38. See Sanderford, supra note 34. The couple said their daughter
asked them why the family could not go to a different church, one
without picketers. See id.

n39. See id.; see also Olmer, 23 F. Supp. 2d at 1097 (discussing
the Sunday routine of "asking ... children to remove their seat
belts and sit on the floor ... to avoid having them see the large
graphic signs" (internal quotation marks omitted)).

- -End Footnotes- -
Ultimately, members of the congregation felt forced to hire an
attorney to lobby the city council for an antipicketing ordinance
designed to protect churches. n46 In particular, the churchgoers re
sented that many of their children were now afraid to attend serv
ices. n47 Church members collected some 3000 signatures supporting
the proposed restriction. n48 The local city council eventually
passed the measure over a mayoral veto and opposition from the city
attor ney, who stated publicly that in his opinion the ordinance
would be found unconstitutional after an expensive court battle.

n49 The new or dinance forced picketers carrying signs, banners,
and placards to re main across the street from any house of worship
in the city "at any [*278] time within the period a half hour
before to a half hour" after serv ices. n50 Drafters of the
ordinance believed that protestors still could stand on the
sidewalks in front of the church at any time for activities such as
handing out leaflets or conducting direct, one-on-one
conversations. n51
- - -Footnotes- - -
n46. See Sanderford, supra note 34.

9.20.090 Disturbing the Peace by Focused Picketing at Religious
Premises
(a) Definitions. As used in this ordinance, the following terms
shall have the meanings here set forth:

(1) The term "religious premises" shall mean "the property on which
is situated any synagogue, mosque, temple, shrine, church or other
structure regularly used for the exercise of religious beliefs,
whether or not those religious beliefs include recognition of a God
or other supreme being";

(2) The term "scheduled religious activity" shall mean "an assembly
of five or more persons for religious worship, wedding, funeral,
memorial service, other sacramental ceremony, religious schooling
or religious pageant at a religious organization's premises, when
the time, duration and place of the assembly is made known to the
public, either by a notice published at least once within 30 days
but not less than 3 days before the day of the scheduled activity
in a legal newspaper of general circulation in the city or in the
alter native by posting the information in a reasonably conspicuous
manner on the exterior premises for at least 3 days prior to and on
the day of the scheduled activity."

(3) The term "focused picketing" shall mean "the act of one or more
per sons stationing herself, himself or themselves outside
religious premises on the exterior grounds, or on the sidewalks,
streets or other part of the right of way in the immediate vicinity
of religious premises, or moving in a re peated manner past or
around religious premises, while displaying a ban ner, placard,
sign or other demonstrative material as a part of their expressive
conduct." The term "focused picketing" shall not include distri
bution of leaflets or literature.

(b) It shall be deemed an unlawful disturbance of the peace for any
person intentionally or knowingly to engage in focused picketing of
a scheduled religious activity at any time within the period from
one-half hour before to one-half hour after the scheduled activity,
at any place (1) on the religious organization's exterior premises,
including its parking lots; or (2) on the portion of the right of
way including any sidewalk on the same side of the street and
adjoining the boundary of the religious premises, including its
parking lots; or (3) on the portion of the right of way adjoining
the bound ary of the religious premises which is a street or
roadway including any median within such street or roadway; or (4)
on any public property within 50 feet of a property boundary line
of the religious premises, if an entrance to the religious
organization's building or an entrance to its parking lot is
located on the side of the property bounded by that property line.

Notwith standing the foregoing description of areas where focused
picketing is re stricted, it is hereby provided that no restriction
in this ordinance shall be deemed to apply to focused picketing on
the right of way beyond the curb line completely across the street
from any such religious premises.

Id. (typeface altered).

n51. See Russo, supra note 49. The author of the proposal based it
on a similar ordi nance upheld by a lower court in Topeka, Kansas.

See J. Christopher Hain, Hearing Set on Picket Ordinance, Lincoln
J. Star, Aug. 18, 1998, at 1A. Apparently the attorney was refer
ring to the Prairie Village, Kansas ordinance, see supra note 20
and accompanying text, that a lower court upheld and the Kansas
State Supreme Court declined to review for constitutionality.

- -End Footnotes- -
[*279] Four "Rescue the Heartland" protestors immediately filed a
suit in a federal district court seeking to halt enforcement of
the ordi nance before it took effect. n52 United States District
Judge Richard Kopf issued a temporary restraining order
prohibiting enforcement of the ordinance. n53 On November 4, 1998,
Judge Kopf found the ordi nance overbroad and granted a
preliminary injunction against its en forcement. n54 The Lincoln
City Council voted to appeal the injunction to the United States
Court of Appeals for the Eighth Circuit. n55
- - -Footnotes- - -
n52. See Olmer, 23 F. Supp. 2d at 1094. Three of the protestors
testified that they never knowingly harassed or intimidated anyone.

See id. at 1096. With the city attorney unavaila ble to defend the
ordinance because of his public statements, the city hired a local
firm and accepted an offer of pro bono assistance from the
Washington, D.C. office of Wilmer, Cutler & Pickering. See Ed
Russo, 2 Firms to Defend City in Picket Suit, Lincoln J. Star,
Sept. 29, 1998, at 1A.

n53. See Olmer, 23 F. Supp. 2d at 1096.

n54. See id. at 1094.

n55. See Mark Andersen, Council to Appeal Picketing Ruling, Lincoln
J. Star, Nov. 17, 1998, at 1A. Whether the city will continue the
legal battle now that the protest has stopped remains to be seen.

The Eighth Circuit affirmed, 2-1, Judge Kopf's injunction just as
this Note was going to press. See Olmer v. City of Lincoln, No. 98-
4112NE, 1999 U.S. App. LEXIS 25528 (8th Cir. Oct. 17, 1999). Time
constraints do not permit a full analysis of the circuit court's
decision here, but the majority opinion and the dissent provide
inter esting, real-world examples of some of the arguments
discussed more fully in Part IV.

- -End Footnotes- -
3. Topeka, Kansas
In St. David's Episcopal Church v. Westboro Baptist Church, Inc.,
n56 the plaintiff church sued members of the Westboro Baptist
Church under a nuisance theory, requesting a temporary injunction
to enjoin them from engaging in focused picketing n57 outside St.

David's during scheduled worship sessions, weddings, funerals, and
other services. n58 A lower court granted a temporary restraining
order ("TRO") largely adopting the language of St. David's
petition. This order restricted Westboro members from focused
picketing within thirty-six feet of the church property to the
east, west, and north, and within 215 feet of church property on
the south, starting one half hour before and end ing one half hour
after a "religious event." n59 The Westboro members continued
picketing without their customary signs, n60 and the lower court
amended the TRO to cover focused picketing "with or without
banners, placards, or signs." n61 The Kansas Court of Appeals
[*280] later ruled that this TRO "ripened into a temporary
injunction," n62 which Westboro appealed.

n57. In their petition, St. David's defined "focused picketing as
'standing, sitting or walk ing at a deliberately slow speed or
walking repeatedly around Plaintiff's house of worship by any
person governed by the order, while carrying a banner, placard or
sign.'" Id. at 824.

n58. See id.

n59. Id. at 825.

n60. See id. at 825-26.

n61. Id. at 826.

n62. Id. at 827.

- -End Footnotes- -
The St. David's court viewed the evidence in a light most favorable
to the plaintiff to decide if the church would have a substantial
likeli hood of prevailing on the merits. n63 The court deliberately
refused to reach the issue of whether Westboro's speech was
constitutionally pro tected n64 and ruled in favor of St. David's
to affirm the buffer zone. n65 Both the Kansas Supreme Court and
the United States Supreme Court declined to review the decision.

- -End Footnotes- -
These three cases - Hogan, Olmer, and St. David's - provide an idea
of how a ban on picketing outside churches might fare if a court
were to examine it fully. In Hogan, the court avoided the constitu
tional issue, but stressed narrow construction of the restrictive
ordi nance. The Olmer court held that challenges to a similar
ordinance would have a substantial likelihood of success, while the
court in St. David's upheld a judge-instituted ban targeting a
specific group of picketers. To understand these interpretations
and to predict what other courts might do in similar situations, it
is best to begin with the basic tenets of free speech law.

II
Court Methodology for Review of Restrictions onExpression
The emphasis placed on freedom of speech in this country makes the
First Amendment a hotly debated topic in many contexts. The First
Amendment provides, in part, that "Congress shall make no law ...

abridging the freedom of speech." n67 But, as with any general
rule, courts recognize exceptions. For instance, the proverbial
prankster who enjoys yelling about fires in theaters lacks
constitutional protec tion, n68 as does the ruffian who threatens
others with violence. n69
- - -Footnotes- - -
n67. U.S. Const. amend. I.

n68. See New York Times v. United States, 403 U.S. 713, 749 (1971)
(Burger, C.J., dis senting) (referring to Justice Holmes's famous
hypothetical).

n69. See Watts v. United States, 394 U.S. 705, 707 (1969) (dictum)
(stating that a statute making a threat against the President a
crime is constitutional as long as it is interpreted with an eye to
the limitations of the First Amendment).

- -End Footnotes- -
In the case of relatively peaceful picketing, courts first pay
atten tion to the location protestors choose to deliver their
message rather than the message itself. "There is no doubt that as
a general matter peaceful picketing ... [is] expressive activity
involving 'speech' pro [*281] tected by the First Amendment," n70
but not all speech is protected in all places.

- -End Footnotes- -
A. Standard Public Forum Analysis
The doctrine surrounding First Amendment challenges to speech
restrictions is well-established, though sometimes difficult to
apply in practice. n71 As an initial matter, courts ask whether the
site of the speech is a public forum where speech receives the most
deference, a "limited" public forum open only to certain types of
speech, or a non public forum where speech may be restricted. n72
The Supreme Court considers streets, parks, and sidewalks - whether
near a church or not - to be "quintessential public forums." n73
From "'Time out of mind' public streets and sidewalks have been
used for public assembly and debate, the hallmarks of a traditional
public forum." n74 In such paradigmatic public forums, government
regulations impacting ex pression must meet several requirements.

First, the restriction must be content-neutral to avoid facing
nearly always-fatal strict scrutiny. n75 Second, the regulation
must be a reasonable time, place, or manner restriction that serves
an important governmental interest without closing alternative
channels for the expression. n76 Third, the regula tion must be
narrowly tailored to serve the governmental interest. n77
- - -Footnotes- - -
n71. See generally Steven G. Gey, Reopening the Public Forum - From
Sidewalks to Cyberspace, 58 Ohio St. L.J. 1535, 1535-55 (1998)
(reviewing the history of the public forum doctrine).

n72. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460
U.S. 37, 45-48 (1983). For a critical analysis of whether these
distinctions provide the best way to address First Amendment
questions, see C. Thomas Dienes, The Trashing of the Public Forum:

- -End Footnotes- -
1. Content Neutrality
To demonstrate content neutrality, the government must show that
its restriction can be "justified without reference to the content
of the regulated speech." n78 The relevant test is whether the
government "adopted a regulation of speech because of disagreement
with the message it conveys. The government's purpose is the
controlling con [*282] sideration." n79 Even if a restriction
tends to affect some speakers more than others, the Constitution
requires nothing more than a content- neutral governmental purpose.

- -End Footnotes- -
2. Reasonable Time, Place, or Manner Restriction
Once restriction on expression passes the content neutrality test,
the government must show that it serves a significant governmental
interest while leaving open ample alternative channels for speech.

n81 Reasonable time, place, or manner restrictions give government
the power to control disruption in public areas so long as this
control does not tread heavily on speech rights.

- - -Footnotes- - -
n81. See Heffron, 452 U.S. at 647-48.

- -End Footnotes- -
Courts recognize a variety of significant governmental interests as
constitutionally permissible bases of time, place, or manner
restric tions. For example, the Supreme Court considers the orderly
move ment of large crowds about a fairground, n82 the maintenance
of attractive city parks, n83 the smooth flow of traffic on busy
streets, n84 and the freedom of neighborhoods from over-amplified
noises n85 as sub stantial governmental interests to justify the
restriction of speech. While the analysis is heavily fact-specific,
a general theme of protect ing "the safety and convenience" of
citizens in public places emerges from these holdings. n86
- - -Footnotes- - -
n82. See id. at 651.

n83. See Clark v. Community for Creative Non-Violence, 468 U.S.

288, 296 (1984).

n84. See Cox v. Louisiana, 379 U.S. 536, 554 (1965).

n85. See Kovacs v. Cooper, 336 U.S. 77, 87 (1949).

n86. Heffron, 452 U.S. at 650 (internal quotation marks omitted).

- -End Footnotes- -
The government also must show that ample alternative channels of
expression remain in spite of the restriction. An alternative chan
nel for expression could entail moving the speech to a nearby, less
obtrusive location or allowing the speaker to stay in the area, but
to communicate in other ways. If the speaker still can reach the
selected target audience through the alternative channel, a court
will usually find that ample channels exist. n87
- - -Footnotes- - -
n87. See id. at 654-55.

- -End Footnotes- -
3. Narrow Tailoring
Although a regulation "must be narrowly tailored to serve the
government's legitimate, content-neutral interests[,] ... it need
not be the least restrictive or least intrusive means of doing so."

n88 As long as the means chosen by the government "are not
substantially broader than necessary to achieve the government's
interest, ... the regula [*283] tion will not be invalid simply
because a court concludes that the gov ernment's interest could be
adequately served by some less-speech- restrictive alternative."

n89 In practice, predicting whether a restriction will be found
substantially broader than necessary is difficult because of the
fact-specific nature of the inquiry. Courts examining such ordi
nances consider a variety of issues, such as the types of communica
tion banned, and the times of day and geographical areas in which
speech is restricted.

n89. Id. at 800. When reviewing injunctions, a more rigorous
standard applies, as the Supreme Court explained in Madsen v.

Women's Health Center, Inc., 512 U.S. 753, 765 (1994). Concerned
that injunctions might have a more discriminatory potential than
stat utes, the Court moved beyond mere intermediate scrutiny and
declared an injunction must "burden no more speech than necessary
to serve a significant government interest." Madsen, 512 U.S. at
765.

- -End Footnotes- -
B. Free Speech in the Context of Residential Picketing
In Frisby v. Schultz, n90 the Supreme Court upheld an ordinance
designed to stop anti-abortion harassment by prohibiting picketing
outside private residences. n91 Controversial picketing outside the
Brookfield, Wisconsin home of a doctor who performed abortions
prompted the ordinance. Over the course of one month, groups of
eleven to forty protestors picketed six times outside the doctor's
home. n92 Although the picketers did not violate local rules
prohibiting disorderly conduct and loud noises, neighborhood's
complaints led the town board to take action. n93 Aware that any
exceptions might doom the ordinance for lack of content neutrality,
the town leaders passed a relatively broad restriction outlawing
any "picketing before or about the residence or dwelling of any
individual in the Town of Brookfield." n94 The ordinance stated
that Brookfield residents "enjoy in their homes and dwellings a
feeling of well-being, tranquility, and privacy" that ought to be
protected and preserved from picketing that "causes emotional
disturbance and distress to the occupants ... [and] has as its
object the harassing of such occupants." n95
- - -Footnotes- - -
n90. 487 U.S. 474 (1988).

1983 after officials notified them that further protests would lead
to enforcement of the new ordinance. n96 Subsequently, the district
court held that the ordinance did not meet the narrow tailoring
require [*284] ments for public forum restrictions. n97 This
decision was eventually af firmed by a divided panel of the United
States Court of Appeals for the Seventh Circuit, n98 and then was
appealed to the Supreme Court, n99 which granted certiorari.

n99. See Frisby v. Schultz, 484 U.S. 1003 (1988) (postponing the
further consideration of jurisdictional question until "the hearing
of the case on the merits").

- -End Footnotes- -
The Supreme Court's analysis of the issue n100 began by noting that
any picketing restriction must be subjected to "careful scrutiny,"

but that "'even protected speech is not equally permissible in all
places and at all times.'" n101 The Court quickly dispatched the
Town of Brookfield's argument that its narrow, residential streets
could not be characterized within the standard definition of a
public forum. n102 Jus tice O'Connor wrote, "No particularized
inquiry into the precise na ture of a specific street is necessary
... [for streets] held in the public trust [to be] properly
considered traditional public fora." n103 Thus, any picketing
ordinance must meet the Court's "stringent stan dards" n104 for
speech restrictions outlined in cases such as Perry. n105
- - -Footnotes- - -
n100. See Frisby v. Schultz, 487 U.S. 474 (1988). Justice O'Connor
wrote the majority opinion.

n101. Id. at 479 (alterations in original) (quoting Cornelius v.

NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 799 (1985)).

n102. See id. at 480.

n103. Id. at 481
n104. Id.

n105. See supra notes 72-89 and accompanying text.

- -End Footnotes- -
As the Brookfield town leaders anticipated, the Court held the
broad language of the ordinance content-neutral. n106 The Court
then considered whether the ordinance met the Perry test under
which it must be (1) narrowly tailored to (2) serve a significant
governmental interest and (3) leave open ample alternative channels
of communica tion. The Court's response to each of these factors
deserves mention.

- - -Footnotes- - -
n106. See Frisby, 487 U.S. at 482.

- -End Footnotes- -
Starting with the alternative channels requirement, the Court dis
tinguished its analysis from those of the lower courts by insisting
on a narrow view of the ordinance's scope. Rather than
characterizing the ordinance as banning all picketing in
residential areas, the Court fo cused on the ordinance's language
and use of the singular forms of "residence" and "dwelling." n107
According to the Court, this choice of words suggested "that the
ordinance is intended to prohibit only pick eting focused on, and
taking place in front of, a particular resi dence." n108 Thus,
protestors remained able to communicate their message with "general
marching through residential neighbor [*285] hoods, or even
walking a route in front of an entire block of houses." n109 The
Court determined that ample channels of protest re mained open,
because the ordinance only foreclosed focused picketing. n110
- - -Footnotes- - -
n107. See id.

n108. Id.

n109. Id. at 483.

n110. See id. at 484. The Court agreed with the Town that the
ordinance would permit protestors to enter neighborhoods in groups,
to go door-to-door explaining their views, to distribute literature
through the mail, and to call residents on the telephone. See id.

- -End Footnotes- -
Next, the Court agreed that governments have an interest in pro
tecting the tranquillity and privacy of the home - the unique
"'last citadel of the tired, the weary, and the sick.'" n111 The
Court relied on a line of cases that held that the government can
protect unwilling re cipients of a message while inside of their
homes. n112
- - -Footnotes- - -
n111. Id. (quoting Gregory v. Chicago, 394 U.S. 111, 125 (1969)
(Black, J., concurring)).

n112. According to the Court, there "is no right to force speech
into the home of an unwilling listener." Id. at 485. The Court
cited FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (holding that
offensive radio broadcasts are not protected speech), Kovacs v.

Cooper, 336 U.S. 77 (1949) (holding that soundtrucks broadcasting
at unreasonably loud volumes in residential neighborhoods are not
protected speech), Martin v. Struthers, 319 U.S. 141 (1943)
(holding a complete ban on door-to-door solicitation invalid, but
noting that home owners who indicate an unwillingness to be
disturbed could still be protected from intru sion), and Schneider
v. State, 308 U.S. 147 (1939) (holding that a municipality's duty
to maintain the smooth flow of traffic through its streets
permitted it to restrict the distribu tion of handbills on the
streets and sidewalks in support of this decision). In all of these
cases, however, messages enter the home more invasively than the
apparently peaceful Brookfield picketing. Handbilling involves
someone actually entering the homeowner's property. Radio
broadcasts go directly into the unwilling listener's living room.

Obnox ious sound trucks spitting advertisements at high volume
could be nearly impossible to ignore. While potentially as
harassing as any of these other examples, picketing also can be
easy to shut out as long as the protestors remain relatively quiet.

- -End Footnotes- -
Lastly, the Court considered whether the ordinance actually
targeted more activity than what it sought to eliminate and thus
vio lated narrow tailoring principles. A complete ban of a
particular ex pressive activity may be permissible, the Court
wrote, if the "'medium of expression itself'" rather than a
byproduct of that communication offends the governmental interest.

n113 Applying this to Brookfield, the Court contended that the
focused picketing did not "seek to dissemi nate a message to the
general public, but to intrude upon the targeted resident, and to
do so in an especially offensive way." n114 Furthermore, the Court
wrote, the target of such an "offensive and disturbing ... form of
... communication ... is figuratively, and perhaps literally,
trapped within the home, and because of the unique and subtle im
pact of such picketing is left with no ready means of avoiding the
un wanted speech" as might be possible away from the home. n115 The
[*286] Court thus held that the First Amendment allowed Brookfield
to pro tect this "captive audience" by completely banning this
intrusive speech. n116
- - -Footnotes- - -
n113. Frisby, 487 U.S. at 486 (quoting City Council v. Taxpayers
for Vincent, 466 U.S. 789, 810 (1984) (upholding a local ordinance
banning all signs on public property in order to reduce visual
clutter and blight)).

n114. Frisby, 487 U.S. at 486.

n115. Id. at 487.

n116. Id. at 487-88.

- -End Footnotes- -
By denying certiorari in Lawson v. Murray, n117 the Supreme Court
recently rejected a challenge to an even broader injunction issued
to protect the home of a New Jersey doctor who performs abortions.

The Court let stand a restriction that prohibited protestors from
dem onstrating on the street along Murray's property line, about
eighty feet from the house, and limited protesting beyond that
point to fifteen persons for one hour every two weeks, provided
that the protestors give police twenty-four-hour advance notice.

n118 Although Justice Scalia concurred in the denial of certiorari
on separate grounds, he condemned the injunction as "a mockery of
First Amendment law." n119 Justice Scalia wrote that the lower
court's reliance on the "captive au dience" exception "may make it
difficult to reach the most significant question the case presents:

- -End Footnotes- -
In the case of the residential castle, it appears that even the
rela tively peaceful picket is too much of an imposition for
captive home- dwellers to bear. The question that remains open is
whether this strong protective impulse translates to protections of
other facets of life farther from home.

III
Current First Amendment Case Law Appears Only Partially Applicable
to Church PicketingOrdinances
A. Statutes Prohibiting Disruption of Religious Services
Although only a few ordinances restrict picketing outside churches
to the degree seen in Olmer or Hogan, many states have laws banning
the disruption of funerals n121 or the disturbance of religious
services. n122 Most of these ordinances are broad and could be read
to [*287] encompass picketing outside churches, even when such
picketing is relatively peaceful. For instance, the commonly used
term disturb means "to throw into disorder; to move from a state of
rest or regu lar order; to interrupt a settled state of; to throw
out of course or order." n123 "Disturbance of public or religious
worship" has been de fined as "any acts or conduct which interfere
with the peace and good order of an assembly of persons lawfully
met together for reli gious exercises." n124 In Riley v. District
of Columbia, n125 the District of Co lumbia Court of Appeals upheld
a statute that outlawed the disturbance of congregations engaged in
religious exercise against a charge of vagueness. The court held
that "'disturb' is a word in com mon use and has an ordinary
meaning which is easily understood by persons of reasonable
intelligence." n126 Churchgoers in Lincoln likely would contend
that the Olmer picket at the very least interrupted the settled
state of their congregation and interfered with the good order of
their assembly, even if much of the disturbance occurred outside
the church itself.

n122. See, e.g., Cal. Penal Code 302(a) (West 1997) (providing for
a fine up to $ 1000 for anyone who "intentionally disturbs or
disquiets any assemblage of people met for reli gious worship at a
tax-exempt place of worship"); N.Y. Penal Law 240.21 (Consol. 1998)
(providing that anyone "who makes unreasonable noise or
disturbance" within 100 feet of a religious service is guilty of
aggravated disorderly conduct); N.C. Gen. Stat. 14- 288.4(a)(7)
(1997) (stating that anyone who "engages in conduct which disturbs
the peace or order at any religious service" commits unlawful
disorderly conduct); .

n123. Black's Law Dictionary 476 (6th ed. 1990).

n124. Id. at 477.

n125. 283 A.2d 819 (D.C. 1971).

n126. Id. at 822.

- -End Footnotes- -
The few court cases dealing with religious service and funeral dis
ruption ordinances focus on protestors who actually entered a
church during or shortly after services. n127 However, some of
these holdings also include broad language that may apply to pre-
or post-service dis turbance. For example, in Hill v. State n128 an
Alabama court held that a law forbidding disturbance of religious
worship applied even when services had concluded and members were
leaving: n129 "There is generally an assemblage of the worshippers
before the services com mence, and the assemblage continues for a
reasonable time after the ... services terminate...." n130
- - -Footnotes- - -
n127. See, e.g., State v. Olson, 178 N.W.2d 230, 231 (Minn. 1970)
(upholding conviction of the defendant for disrupting a church
service under a statute proscribing the distur bance of another's
"peace and quiet" (internal quotation marks omitted)).

n128. 381 So. 2d 206 (Ala. Crim. App. 1979).

n129. See id. at 212.

n130. Id.

- -End Footnotes- -
Although this language offers supporters of an Olmer-style ordi
nance some ground to argue that freedom of expression around a
church may be subject to special limits, police guarding the church
in Hill did not arrest the defendant until he actually entered the
build ing, placard in hand. n131 In contrast, nowhere in Olmer is
it alleged [*288] that picketers entered the church or even that
the picketing could be heard or seen from within the church walls.

- - -Footnotes- - -
n131. See id. at 209.

- -End Footnotes- -
B. Cases Dealing with Protests Outside Churches
Many of the cases dealing with church protests are distinguish able
from Olmer and St. David's. In Olivieri v. Ward, n132 the Second
Cir cuit upheld a police order preventing gay rights protestors
from demonstrating directly in front of St. Patrick's Cathedral in
New York City during the annual Gay Pride March, but allowing the
demonstra tors to picket on an adjacent street. n133 The court held
that the tempo rary clearing of the church sidewalk was a
reasonable time, place, or manner restriction, n134 given the size
of the demonstration, the poten tial for violence due to the
event's history, and the nearby counter- demonstration planned by
anti-gay protestors. n135 Furthermore, the court concluded that the
side street option gave the demonstrators ample alternative
channels for their communication. n136 Because this case dealt with
a large demonstration and only a temporary speech restriction, it
is easily distinguishable from the Olmer statute, which involved a
permanent restriction applied to small groups without a local
history of violence.

- -End Footnotes- -
In another church picketing case, Action v. Gannon, n137 the Eighth
Circuit held that protestors could not demonstrate inside a
cathedral, but that they had the right "to engage in peaceful
pamphleteering and picketing on public property ... provided, of
course, that they do not interfere with those entering or leaving
the church." n138 Arguably dicta, it is difficult to know what the
Action court meant by interfere. This case involved protestors who,
on numerous occasions, entered a church with the intention and
effect of disrupting and actually halting services. n139
- - -Footnotes- - -
n137. 450 F.2d 1227 (8th Cir. 1971).

n138. Id. at 1232-33.

n139. See id. at 1229-31.

- -End Footnotes- -
In Tompkins v. Cyr, n140 a federal district court in Texas examined
a request for an injunction prohibiting protests outside the home
of a beleaguered doctor and his wife who had been the focus of
protests at several locations, including their church. In
restricting the protestors, the court criticized their activity
outside the church:

- - -Footnotes- - -
n140. 995 F. Supp. 664, 671-73 (N.D. Tex. 1998)
- -End Footnotes- -
The Court is troubled by the notion that a person may be sub jected
to focused picketing at their place of worship. Indeed, the [*289]
right to engage in quiet and reflective prayer without being sub
jected to unwarranted intrusion is an essential component of free
dom of religion. The government certainly has a significant
interest in protecting this important First Amendment right.

opposed to abortion challenged a city ordinance that barred demon
strations within eight feet of entrances to medical clinics and
houses of worship (the "driveway" provisions) or within a moving
eight-foot "bubble" surrounding approaching and departing patients
or wor shipers within 100 feet of such entrances. n144 While the
district court enjoined enforcement of the ordinance except for the
"bubble zone," the Ninth Circuit reversed and upheld only the
"driveway" provision for both clinics and churches. n145 In that
case, however, the govern mental interest focused on parishioners'
physical access to churches. n146 A small eight-foot buffer zone
allows both access to a doorway as well as nearly every form of
communication, including conversation. The Edwards ordinance did
not prohibit signs or any gatherings outside the narrow eight-foot
zone, differentiating itself from the more wide-sweeping ban seen
in Olmer. n147
- - -Footnotes- - -
n143. 150 F.3d 1213 (9th Cir. 1998) (per curiam), cert. denied, 119
S. Ct. 1142 (1999).

n144. Id. at 1215 (internal quotation marks omitted).

n145. Id. (internal quotation marks omitted).

n146. See id. at 1216-17.

n147. In an older New York state court decision, Abyssinian Baptist
Church of New York v. African Nationalist Movement, 71 N.Y.S.2d 93
(N.Y. Sup. Ct. 1947), the court granted a pre liminary injunction
against Sunday church picketing on the grounds that it "tends to a
breach of the peace and the sanctity of the day and holy places of
assembly and worship." Id. at 93. However, the court's reliance on
the Book of Exodus as its sole authority for this proposition, see
id., limits the precedential value of the holding.

- -End Footnotes- -
IV
The Constitutionality of Church Picketing Bans: Combining the Lower
Court Decisions with Free SpeechMethodology
In the absence of case law dealing directly with the question of
whether ordinances or injunctions banning picketing outside a
church are constitutional, the best guides are Olmer, St. David's,
and Supreme Court cases such as Frisby. The next section gives an
analysis of picketing restrictions in light of these cases and the
First Amend ment doctrine described above.

[*290]
A. The Requirement of Content Neutrality
Like the broad ordinance passed by Brookfield and upheld in Frisby,
n148 total restrictions on church picketing appear to pass the con
tent-neutrality gauntlet. On its face, such a measure simply bans
all types of focused protests regardless of the message conveyed,
perhaps subject to specific time periods.

- -End Footnotes- -
For example, the St. David's court quickly decided the injunction
before it met the test of content neutrality. Quoting the command
from Madsen that "'the government's purpose [is] the threshold con
sideration,'" the St. David's court held that the express purpose
of the injunction was to prevent potential violence between
Westboro and St. David's members as occurred during previous
encounters. n149 This consideration, the court said, was not
viewpoint based. n150
- - -Footnotes- - -
n149. St. David's Episcopal Church v. Westboro Baptist Church,
Inc., 921 P.2d 821, 829 (Kan. Ct. App. 1996) (quoting Madsen v.

Women's Health Ctr., Inc., 512 U.S. 753, 763 (1994)).

n150. See St. David's, 921 P.2d at 829.

- -End Footnotes- -
The Olmer opinion notes that content neutrality can be deter mined
by evidence showing that officials passed an ordinance in re sponse
to specific protestors outside a particular church. n151 Such
concerns are beyond the scope of this Note which discusses such
ordi nances in a more general sense and assumes no content-based
motives on the part of the legislative decision maker. Given no
ulterior mo tives, an outright ban on all types of picketing in
front of any place of worship appears to be content neutral. Such a
ban requires no in quiry into the nature or substance of the
restricted speech.

- - -Footnotes- - -
n151. While finding the ordinance content-neutral for the purposes
of the preliminary injunction, the Olmer court noted:

There is evidence in the record that the ordinance at issue was
written by the attorney for the Westminster Presbyterian Church;

that the attorney, on the church's behalf, was attempting to target
and regulate demonstrators who carry anti-abortion signs outside of
that particular church; and that the ordinance was drafted broadly
for strategic purposes in order to avoid per ceived constitutional
difficulties.... [A] plausible argument can be made that the
ordinance's facial content-neutrality is but a pretext for siding
with a large and influential church to the detriment of a few
protestors ....

Olmer v. City of Lincoln, 23 F. Supp. 2d 1091, 1099 (D. Neb. 1988)
(footnotes omitted), aff'd, No. 98-4112NE, 1999 U.S. App. LEXIS
25528 (8th Cir. Oct. 17, 1999). The court's reasoning presents an
interesting problem for other legislative bodies in similar
situations. How can legislators assure courts that their facially
neutral regulations are in fact neutral even when passed entirely
at the insistence of the targets of a specific protest?

- -End Footnotes- -
B. The Requirement of an Important Governmental Interest
The promulgation of a reasonable time, place, or manner restric
tion also requires a constitutionally important governmental
interest. Both the Lincoln ordinance and the Kansas injunction cite
two poten [*291] tially legitimate governmental interests:

protecting children and pro tecting the right to worship.

1. Protecting Children
The district court in Olmer held that the main governmental inter
est at stake was "protecting very young children from being forced
to view extremely graphic and quite disturbing images upon their en
trance to, or exit from, church." n152 The court found this
interest in protecting children from gruesome signs to be
significant, n153 a point the plaintiff protestors conceded. n154
- - -Footnotes- - -
n152. Id.

n153. See id. at 1100. The court cited, among other cases, Sable
Communications, Inc. v. FCC, 492 U.S. 115, 126 (1989) ("There is a
compelling interest in protecting the physical and psychological
well-being of minors.").

n154. See Olmer, 23 F. Supp. 2d at 1100.

- -End Footnotes- -
Like the Olmer court, the St. David's court wrestled with the issue
of whether the protestors' verbal and visual speech barrage
deserved less constitutional protection because children were
routinely a part of the target audience. n155 The court noted the
Supreme Court's hold ing in FCC v. Pacifica Foundation n156 that
speech delivered to homes through radio broadcasts was "uniquely
accessible to children" in con trast to forms of expression that
can be withheld from children with out restricting access to
adults. n157 Comparing the audience in the case before it to that
in Pacifica, the St. David's court explained that adding children
to the mix changed the language that Westboro pick eters lawfully
could use. n158 "Importantly, as in [Pacifica], the audience cannot
be otherwise separated out so that the children are not subject to
the objectionable speech, absent requiring the children to remain
home, which would be an obvious assault upon their free exercise of
religion." n159 The St. David's court also reasoned that, as with
messages transmitted via broadcast media, church picketing
confronts citizens in both a public and private sphere - public
space must be traversed to get to the church, and actually engaging
in worship is a private activity. n160
- - -Footnotes- - -
n155. See St. David's, 921 P.2d at 830-31.

n156. 438 U.S. 726 (1978) (upholding an FCC order condemning radio
station that broadcast comedian's monologue entitled "Filthy
Words").

n157. St. David's, 921 P.2d at 831 (quoting Pacifica, 438 U.S. at
749).

n158. See id.

n159. Id.

n160. See id.

- -End Footnotes- -
Although both the Olmer and St. David's courts came to the con
clusion that protecting children from gruesome language could be an
important governmental interest, the interest is a problematic one.

While the urge to protect children is strong and understandable,
com plete protection of a group nearly ubiquitous in society
requires simi [*292] larly ubiquitous restrictions that sanitize
language everywhere. The Supreme Court recognized this concern in
Bolger v. Youngs Drug Prod ucts Corp. n161 In Bolger, the court
struck down a federal statute outlaw ing the mailing of unsolicited
contraceptive advertisements. n162 Noting that Pacifica's special
governmental interest in regulating broadcast media "does not
readily translate into a justification for reg ulation of other
means of communication," n163 the Court declared that "the level of
discourse reaching a mailbox simply cannot be limited to that which
would be suitable for a sandbox." n164 Most recently, the Supreme
Court in Reno v. ACLU n165 applied strict scrutiny to an In ternet
antipornography measure designed to protect children. The Court
found that the medium featured neither the invasive nature nor the
spectrum scarcity attributed to broadcasting in Pacifica. n166
- - -Footnotes- - -
n161. 463 U.S. 60 (1983).

n162. See id. at 75.

n163. Id. at 74.

n164. Id.

n165. 521 U.S. 844 (1997).

n166. See id. at 868-70.

- -End Footnotes- -
One could argue with the St. David's court by saying that grue some
pictures outside a church that children must attend constitute a
medium just as invasive as broadcasting. However, it is important
to remember that Pacifica and Reno involved protecting children
from obscene speech, not the political protest speech in question
as in St. David's. n167 In Ginsberg v. New York, n168 the Supreme
Court held that material not obscene for adults could still be
obscene and restricted as to minors. The Ginsberg Court, however,
made clear that such mate rial could not be kept from adults, even
noting that the challenged statute allowed parents to acquire the
material for their children. n169 Therefore, an ordinance simply
banning all gruesome speech outside a church would impermissibly
restrict both children's and adults' ac cess to the material.

- - -Footnotes- - -
n167. Obscene material is generally held to appeal to the prurient
interest in nudity, sex, or excretion. See Model Penal Code
251.4(1) (1980). Although they may be distasteful or perhaps even
shocking, the sort of images described in Olmer and St. David's do
not meet the legal definition of obscenity.

n168. 390 U.S. 629 (1968).

n169. See id. at 639. For a discussion of various attempts to
protect children from obscen ity, see Note, The Cyberworld Cannot
Be Confined to Speech That Would Be Suitable for a Sandbox, 29
Seton Hall L. Rev. 286 (1998).

- -End Footnotes- -
2. Protecting the Right to Worship or "Religious Privacy"

Another potential governmental interest involves protecting the
right of citizens to worship without undue interference. For
example, the Lincoln ordinance provides that it "is intended only
to prohibit a certain specified form of disturbance of the peace
which arises when [*293] one form of expressive conduct, focused
picketing, tends to override another form of expressive conduct,
namely the free exercise of reli gion." n170 The St. David's
decision also mentioned other governmental interests such as
"ensuring the public safety and order," "promoting the free flow of
traffic on public streets and sidewalks," protecting "property
rights" and the "right to worship one's religion without
infringement." n171
- - -Footnotes- - -
n170. Olmer v. City of Lincoln, 23 F. Supp. 2d 1091, 1096 (D. Neb.

- -End Footnotes- -
The same First Amendment that keeps expression free from gov
ernmental interference also protects citizens from any abridgment
of the free exercise of their religion. n172 Although there is no
state action prohibiting free exercise of religion in the case of a
private group picketing a church, in some contexts government
inaction has the ef fect of subordinating one right to another. As
the Supreme Court wrote in Kovacs v. Cooper, n173 "to enforce
freedom of speech in disre gard of the rights of others would be
harsh and arbitrary." n174 If the government did nothing to stop
private interference with the exercise of constitutional rights,
those rights would be worthless. n175 For exam ple, courts have
held that the free exercise of religion does not in clude the
freedom to destroy the religious activities of another. n176 Free
speech is also subjugated to a defendant's right to a fair trial by
limiting pretrial prejudicial statements. n177 As seen in Frisby,
the gov ernment has a further interest in protecting privacy in
that "'last cita del of the tired, the weary, and the sick'" - the
home. n178 These same words could easily apply as well to churches,
long sanctuaries for those weary, tired, and sick both physically
and spiritually. In fact, these words were originally found in
Justice Black's concurrence in Gregory v. City of Chicago, n179
which notes that buildings besides homes, such as schools,
courthouses, libraries, and hospitals, require peace and quiet.

n180 Similarly, one can argue that churches carry an inherent
[*294] sanctity that approaches close to that of the home, perhaps
even sur passing it in the minds of many churchgoers.

- -End Footnotes- -
While examining the governmental interest in protecting churches
from undue disturbances, the St. David's court noted the concern in
Frisby and Madsen for residential privacy. n181 The court also
reflected on the holding of the Madsen Court that the government
has a significant interest in protecting a clinic's property from
focused picketing because it "threatened both the psychological and
physi cal well-being of a [reproductive] clinic's patients." n182
The St. David's court then agreed with the Kansas trial court that
one has the right to worship in a peaceful environment, be it one's
home or one's house of worship. n183 Based on this reasoning, the
St. David's court found that "in addition to the government
interest in protecting residential and clinical privacy, the
government has a legitimate interest in pro tecting the privacy of
one's place of worship." n184 This right, the court said, does not
flow from the free exercise clauses of either the federal or Kansas
state constitutions, since both prohibit government action
interfering with religious conduct. Rather, "the right of free
exercise would be a hollow one if the government could not step in
to safe guard that right from unreasonable interference from
another private party." n185
- - -Footnotes- - -
n181. See St. David's Episcopal Church v. Westboro Baptist Church,
Inc., 921 P.2d 821, 830 (Kan. Ct. App. 1996).

n182. Id.

n183. See id.

n184. Id.

n185. Id.

- -End Footnotes- -
Defending this conclusion, the St. David's court wrote that the
Supreme Court has held that "'religious worship may not be
disturbed by those anxious to preach a doctrine of atheism.'" n186
The court then took the leap necessary to apply such cases to the
situation before it: "More broadly stated[,] ... one's religious
worship may not be unduly disturbed by another anxious to preach a
different religious or social philosophy." n187 As this Note points
out, n188 one person's disturbance might be another's minor
inconvenience. However, demonstrations that actually drive families
away from a particular church, as in Olmer, are arguably undue
disturbances.

- -End Footnotes- -
The other religion-based mandate in the First Amendment, the
Establishment Clause, creates another hurdle that a court must
clear before it could declare religious privacy a significant
governmental in terest. n189 Special restrictions on public areas
near churches might [*295] suggest the imprimatur of a government
favoring religious worship, a chink in the so-called "wall" n190
between church and state.

- - -Footnotes- - -
n189. "Congress shall make no law respecting an establishment of
religion ...." U.S. Const. amend. I. The Supreme Court found the
Establishment Clause applicable to the states through the
Fourteenth Amendment in Everson v. Board of Education, 330 U.S. 1
(1947).

n190. Everson v. Board of Educ., 330 U.S. 1, 18 (1947).

- -End Footnotes- -
Lemon v. Kurtzman n191 articulates the Supreme Court's three-part
methodology for determining whether a governmental action violates
the Establishment Clause: "First, the statute must have a secular
legis lative purpose; second, its principal or primary effect must
be one that neither advances nor inhibits religion; finally, the
statute must not fos ter 'an excessive government entanglement with
religion.'" n192 In a se ries of later decisions the Court modified
the secular-effect prong into an endorsement test, n193 which held
unconstitutional governmental ac tions that, considering the
totality of the circumstances, create in a reasonable person the
perception that the state endorses or disap proves of religion.

n194 Although its precise contours became uncertain after the
Court's splintered decision in Capitol Square Review & Advi sory
Board v. Pinette, n195 the endorsement test still remains a part of
the Establishment Clause doctrine. Lemon and its progeny thus
present an obvious and confusing conflict between the Establishment
Clause and the Free Exercise Clause, because any governmental act
that protects the free exercise of religion necessarily advances
religion in some way. n196
- - -Footnotes- - -
n191. 403 U.S. 602 (1971).

n195. 515 U.S. 753 (1995). A plurality opinion by Justice Scalia
instituted a per se rule, holding that privately funded religious
speech in a state-owned but genuinely public forum does not violate
the Establishment Clause. See id. at 770 (Scalia, J.); see also
David Gold berger, Capitol Square Review and Advisory Board v.

n196. See Walz v. Tax Comm'n, 397 U.S. 664, 668-69 (1970) (noting
that either of religion clauses, "if expanded to a logical extreme,
would tend to clash with the other").

- -End Footnotes- -
A picketing ban that seeks to minimize harassment around churches
seems to meet the first part of the Lemon test. Protecting a
constitutional right is a secular purpose, even if that right
involves reli gion. This case differs from those in which the Court
has found no secular purpose, such as those involving state laws
mandating that all classrooms post a copy of the Ten Commandments,
n197 requiring [*296] schools to teach "creation science," n198
or authorizing teachers to hold one-minute voluntary prayer
sessions. n199 The government imposes no subtle requirement to go
to church by merely protecting the right of citizens to worship.

- -End Footnotes- -
Though the question is closer, bans on picketing outside church
also appear to pass the second Lemon prong, the current endorsement
test. In Corporation of the Presiding Bishop v. Amos, n200 the
Court wrote: "A law is not unconstitutional simply because it
allows churches to ad vance religion, which is their very purpose.

For a law to have forbid den 'effects' under Lemon, it must be fair
to say that the government itself has advanced religion through its
own activities and influ ence." n201 In the case of an Olmer-style
ordinance, it is not fair to say that the city government itself is
advancing religion because the ordi nance only makes it easier for
churches to do so. A prohibition on the picketing of churches has
less effect on their ability to advance reli gion than the
favorable tax treatment that churches already receive. n202 Forcing
a protestor to put down a placard as he passes in front of a
church, though arguably an infringement on free speech, seems no
more of an imposition than forcing that same protestor to fund the
church indirectly through higher taxes. n203
- - -Footnotes- - -
n200. 483 U.S. 327 (1987).

n203. For a good example of the argument that tax benefits for
churches violate the Constitution, see E.C. Lashbrooke, Jr., An
Economic and Constitutional Case for Repeal of the I.R.C. Section
170 Deduction for Charitable Contributions to Religious
Organizations, 27 Duq. L. Rev. 695, 715-20 (1989) (advocating the
repeal of I.R.C. 170 on constitutional grounds).

- -End Footnotes- -
Even so, one might assert that a ban on picketing outside churches
endorses religion when similar bans do not protect other
properties. The plaintiffs in Olmer presented a similar argument
com paring the Lincoln ban to a town ordinance granting churches
free snow removal, which Barense v. Town of Barrington n204 ruled
unconstitu tional. If a city cannot push snow away from a church,
the plaintiffs argued, it should not have the ability to push
citizens away either. n205 The difference between snow and people,
of course, is that the church [*297] easily could get rid of snow
on its own. Only the government, how ever, can remove people from
public property. Therefore, the gov ernment has a responsibility to
prevent uses of public property that interfere with the
constitutional rights of others. Furthermore, legis lators have
targeted other sites where focused picketing might im pinge on
private lives and constitutional rights, such as abortion clinics
and residential areas. n206 A reasonable person more likely will
view these regulations as responses to harassing picket lines
rather than endorsement of a particular way of life.

- - -Footnotes- - -
n204. 955 F. Supp. 151 (D.N.H. 1996).

n205. The protestor plaintiffs in Olmer also argued that the
Lincoln ordinance violated the second Lemon prong because it
granted governmental power to a church, thereby ad vancing
religion. The plaintiffs compared the situation to that in Larkin
v. Grendell's Den, Inc., 459 U.S. 116 (1982), which struck down a
Massachusetts statute giving religious insti tutions the power to
veto certain liquor licenses. See Larkin, 459 U.S. at 127. The
Lincoln ordinance, however, does not give churches power to halt
specific demonstrations that they choose to halt; the broad ban
covers all picketing.

n206. See supra note 3; infra text accompanying notes 215-38.

- -End Footnotes- -
The third prong of the Lemon test, which proscribes "excessive
entanglements," involves "examining the character and purposes of
the institutions that are benefitted, the nature of the aid that
the State provides, and the resulting relationship between the
government and the religious authority." n207 In Agostini v.

Felton, n208 the Court treated this prong as simply another aspect
of the effect of a governmental action. n209 Either way, the test
does not disrupt a church picketing or dinance. This test appears
primarily to prohibit laws that would re quire the government to
undertake "continuing state surveillance" n210 or "entangle the
state in details of administration." n211 These picketing bans
require no state monitoring to determine whether certain con duct
appears religious. The state would act only to remove focused
picketing from outside places of worship, a relatively simple task
that does not interfere with religious activity. n212
- - -Footnotes- - -
n207. Lemon v. Kurtzman, 403 U.S. 602, 615 (1971).

n212. Of course, this action moves the state into the messy
landscape of defining church, but such territory is not new to the
government.

- -End Footnotes- -
Representing further evidence that the Lemon test likely would not
stop a government from protecting the right to worship, the case
law does not appear to cite the Establishment Clause as a bar to
the various antifuneral picketing and worship-disturbance statutes
in place around the country. n213
- - -Footnotes- - -
n213. See supra notes 121-30 and accompanying text.

- -End Footnotes- -
3. Protecting a Captive Audience
Closely related to the idea of "religious privacy," or privacy in
gen eral, is another potential governmental objective: the
protection of a captive audience who, like the home dwellers in
Frisby, cannot retreat from unwanted speech. In Olmer, the city
argued that the state ought [*298] to be able to protect both a
citizen's "religious home" and residential home. n214
- - -Footnotes- - -
n214. Olmer v. City of Lincoln, 23 F. Supp. 2d 1091, 1102 (D. Neb.

- -End Footnotes- -
Generally, "the ability of government, consonant with the Con
stitution, to shut off discourse solely to protect others from
hearing it is, in other words, dependent upon a showing that
substantial privacy interests are being invaded in an essentially
intolerable manner." n215 In an open, public location, the listener
bears the burden of avoiding offensive speech. n216 As the Supreme
Court recognized in Frisby, how ever, listeners cannot always avoid
speech. n217 The private residence in Frisby is the prime example
of a location where listeners can expect their privacy to defeat an
outsider's desire to communicate. The case law is less clear,
however, when addressing areas that lie beyond the inherent
sanctity of the home.

- -End Footnotes- -
The Supreme Court first developed the captive audience idea to
protect residential areas from sound trucks blasting amplified
adver tisements. n218 Generally, a "captive audience" is one that
cannot avoid the objectionable speech. n219 Although the home is
perhaps the best example of an environment in which a captive
audience may exist, the Court has recognized that "in today's
complex society we are ines capably captive audiences for many
purposes" n220 and that the captive audience doctrine may apply to
locations outside the home.

- - -Footnotes- - -
n218. See Kovacs v. Cooper, 336 U.S. 77, 87 (1949). In banishing
obnoxious sound trucks from neighborhoods, the Court reasoned that
people in the surrounding homes were "practically helpless" to
avoid the cacophonous din. Id.

n219. Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530,
542 (1980) (hold ing that advertising inserts in customer bill
envelopes do not implicate a captive audience because the customers
easily could dispose of the objectionable speech).

- -End Footnotes- -
Although that may be true, the Court has been reluctant to iden
tify other specific places where the captive audience doctrine
might operate. n221 Besides people in their own homes, the Court
has pointed to school children as potential captives, especially in
the context of school prayer. n222 In Madsen v. Women's Health
Center, Inc., n223 the Court also noted that "while targeted
picketing of the home threatens the psychological well-being of the
'captive' resident, targeted picketing of a hospital or clinic
threatens not only the psychological, but also the physical, well-
being of the patient held 'captive' by medical circum [*299]
stance." n224 The Court seems to establish a tough test for
captivity in Cohen v. California, n225 which held that the
government may "prohibit intrusion into the privacy of the home,"

but only when "substantial privacy interests are being invaded in
an essentially intolerable man ner." n226 However, a few years
later in Erznoznik v. City of Jacksonville, n227 the Court
generalized that "each case ultimately must depend on its own
specific facts" and that speech restrictions may be permissible
"when the speaker intrudes on the privacy of the home or the degree
of captivity makes it impractical for the unwilling viewer or
auditor to avoid exposure." n228
- - -Footnotes- - -
n221. See Jessica M. Karner, Comment, Political Speech, Sexual
Harassment, and a Captive Workforce, 83 Cal. L. Rev. 637, 669
(1995).

- -End Footnotes- -
The most prominent case that expands the captive audience doc trine
outside the home is Lehman v. City of Shaker Heights. n229 The Leh
man Court plurality decided that commuters in a city-owned and -
operated streetcar present a captive audience whom the government
can protect from certain types of advertising. n230 The plurality
held that the commuters rode the streetcar "as a matter of
necessity, not of choice" n231 and could not avoid viewing
advertising placards. The plu rality cited "the risk of imposing
upon a captive audience." n232 Justice Douglas, the fifth vote,
stressed that "the right of the commuters to be free from forced
intrusions on their privacy precludes the city from transforming
its vehicles of public transportation into forums for the
dissemination of ideas upon this captive audience." n233 Dissenting
Jus tice Brennan, however, contended that riders easily could avert
their eyes to avoid the ads. n234 Only a plurality of the Justices
joined the lead opinion. n235
- - -Footnotes- - -
n229. 418 U.S. 298 (1974).

- -End Footnotes- -
Although some courts still refer to Lehman for the proposition that
captive audiences exist outside the home, n236 the Supreme Court
itself has noted that Lehman involves merely "the special interests
of a government in overseeing the use of its property" n237 and has
limited [*300] its application. In fact, the Court seems outright
reluctant to apply the doctrine to many areas that appear to
involve genuine captivity. For instance, the Supreme Court has not
ruled that employees at their worksite form a captive audience.

n238 It makes little sense to reason that commuters on a streetcar
escape captivity once they arrive at work, which necessitated the
streetcar ride in the first place. Perhaps the Supreme Court would
rather forget about Lehman, and read the language of Frisby as
hinting that the doctrine may not apply outside the home. n239
- - -Footnotes- - -
n236. See, e.g., New York City Unemployed & Welfare Council v.

n239. See id. at 670. As the Frisby Court noted, "that we are often
captives outside the sanctuary of the home and subject to
objectionable speech ... does not mean we must be captives
everywhere." Frisby v. Schultz, 487 U.S. 474, 484 (1988) (omission
in original) (quoting Rowan v. United States Post Office Dep't, 397
U.S. 728, 738 (1970)) (internal quotation marks omitted).

- -End Footnotes- -
Where this stance leaves the application of the captive audience
doctrine to protests outside churches is uncertain. If the current
Supreme Court were to expand the captive audience doctrine beyond
the four walls of the home, churches present one of the strongest
cases.

First, churches potentially present a high degree of real
captivity. Many religions require or strongly encourage in-church
worship on specified days and at specified times. n240 The
congregation and spiri tual leader not only might look upon one's
absence from church with disfavor, but may even regard it as a
punishable sin. n241 For the true believers of many religions,
whether and where to attend church are matters of less flexibility
than virtually any other activity. When protestors surround a house
of worship, the faithful do not have the option of avoidance. The
unwilling listener simply must endure the offensive speech.

n241. The Catechism of the Catholic Church, for instance, makes it
clear that Sunday worship is integral to the dictates of the Third
Commandment, see Exodus 20:8-10, and quotes from the Codex Iuris
Canonici: "On Sundays and other holy days of obligation the
faithful are bound to participate in the Mass." Catechism of the
Catholic Church 526 (1994) (quot ing 1983 Code c.1247) (internal
quotation marks omitted).

- -End Footnotes- -
Second, churches and homes share many similar characteristics. As
with homes, people go to churches voluntarily to exercise their
constitutional rights. Like homes, churches traditionally possess
sanc tity as a place of refuge where the weary might come for
solace and guidance. One Lincoln reverend stated in an Olmer
defense affidavit that "part of our religion teaches our members
that the Church is their spiritual home, a sacred place, and a
place to which they can retreat to escape from the trials and
tribulations of their daily pur [*301] suits." n242 Many
commentators agree that worship is a uniquely private activity.

1996) (describing how many aspects of religion in America are
private).

- -End Footnotes- -
Nevertheless, the Olmer court refused to extend the Frisby captive
audience doctrine to churches, declaring that "it is at best an
imper fect analogy to suggest that adults and children attending
church are similar to the residents of a home." n244 Courts may
avoid this exten sion, because a liberal application of the
doctrine potentially could lead to overly excessive speech
regulation. As the Supreme Court often notes, people in modern
society are captives in some way almost every minute of the day,
forced into certain places by the demands of time, age, health, and
socioeconomic status. n245 Besides the aforemen tioned schoolhouse,
workplace, and doctor's office, several other modern "prisons" may
require one's presence despite the existence of a picket - the
welfare office, courthouse, drivers' license renewal of fice, and
city hall. Depending on one's line of work or other factors, one
even might have to visit these places regularly. Yet, extending the
captive audience doctrine to each of these sites and many others we
might contemplate would intolerably limit free expression.

- - -Footnotes- - -
n244. Olmer, 23 F. Supp. 2d at 1102.

n245. See supra note 220 and accompanying text.

- -End Footnotes- -
Of course, the application of the captive audience doctrine to
churches does not necessitate its extension everywhere. "Church" is
no easier to define than religion itself, but this conceptual
ambiguity does not prevent the government from giving churches
special tax treatment. n246 The analogy between churches and homes
may be im perfect, as the Olmer court suggested, but it is
conceivable that a differ ent court could use this analogy as the
basis for extending the captive audience doctrine to church
picketing.

- - -Footnotes- - -
n246. See I.R.C. 501(c)(3) (1994).

- -End Footnotes- -
C. The Requirement of Ample Alternative Channels
Whether a particular ordinance restricting expression outside a
church leaves ample speech alternatives is a highly fact-specific
ques tion. In City of Ladue v. Gilleo, n247 the Supreme Court held
that even regulations merely shifting the time, place, or manner of
expression must leave ample alternative channels of communications.

n248 The fact that a speaker simply could communicate somewhere
else is not [*302] enough to satisfy the ample alternatives
element. n249 The requirement seeks to ensure that speech
restrictions do not "have the effect of entirely preventing a
'speaker' from reaching a significant audience with whom he could
not otherwise lawfully communicate." n250 In other words, a
speaker's right to convey a message to certain groups must receive
protection along with the message itself.

- - -Footnotes- - -
n247. 512 U.S. 43 (1994).

n248. See id. at 56.

n249. See Schneider v. State, 308 U.S. 147, 163 (1939) ("One is not
to have the exercise of his liberty of expression in appropriate
places abridged on the plea that it may be exer cised in some other
place.").

n250. United States v. O'Brien, 391 U.S. 367, 388-89 (1968)
(Harlan, J., concurring). The Court seems to go even further in
cases such as Gilleo, in which it found a restriction
unconstitutional because, among other reasons, alternative channels
of communication would not reach the intended audience "nearly as
well." Gilleo, 512 U.S. at 57.

- -End Footnotes- -
While cases such as United States v. Grace n251 address the
constitu tional protection of signs and banners on public
sidewalks, n252 the Court considers a wide range of leaflets,
actual speech, and more indi vidualized methods of communication to
be "ample alternatives." n253 For example, the St. David's court
touched only briefly on the alterna tive channels requirement,
noting that Westboro made no showing that alternative avenues left
untouched by the injunction, such as handing out leaflets, engaging
in limited picketing, picketing else where, or using mailings,
would give the defendant "insufficient other means to communicate
its message." n254
- - -Footnotes- - -
n251. 461 U.S. 171 (1983).

n252. See id. at 183-84 (striking down a statute prohibiting the
display of flags or banners on the grounds of the Supreme Court
building).

n253. See, e.g., Clark v. Community for Creative Non-Violence, 468
U.S. 288, 295 (1984) (upholding a ban on sleeping in a park against
protestors seeking to bring attention to homelessness because the
protestors still could communicate their message in ways such as
what the dissent calls "feigned sleeping"); Heffron v.

International Soc'y for Krishna Con sciousness, Inc., 452 U.S. 640,
654-55 (1981) (upholding a state rule mandating that the sale or
distribution of merchandise on a fairground take place in specific,
fixed locations).

- -End Footnotes- -
The Lincoln ordinance forced protestors to move their placards
across the street, but allowed them to distribute leaflets on the
side walk directly in front of the church. n255 Protestors also
could speak to churchgoers from the sidewalk, as long as this
speech did not trigger disturbance-of-the-peace laws. n256 The
Olmer court's opinion granting a preliminary injunction against the
Lincoln ordinance does not reach the issue of ample alternative
channels. n257 The court indicated, however, that because the
church adjoins a busy, four-lane roadway, a prohibition on signs
removes any reasonable means for demonstrators [*303] to
communicate from the sidewalks around the church to passing mo
torists. n258 Furthermore, according to the court the application
of the same rule to a church such as St. Patrick's Cathedral in New
York City would bar protest from a large area during fifty-three
masses each week. n259
- - -Footnotes- - -
n255. See Olmer v. City of Lincoln, 23 F. Supp. 2d 1091, 1095 (D.

n257. The court found that the ordinance was not narrowly tailored
to achieve the gov ernmental interest in question and thus declined
to examine this issue in detail. See id. at 1103.

n258. See id.

n259. See id.

- -End Footnotes- -
Although demonstrators certainly could not distribute leaflets to
motorists speeding past the church, nothing in the Lincoln
ordinance prevents pickets just outside the specified church area.

Presumably, drivers would see signs on an adjacent block as easily
as they would see those in front of the church. So long as churches
were dispersed within the community, there would be plenty of
sidewalk space for protestors to picket under the potential
observation of motorists. As for the target audience itself, the
Olmer ordinance gives demonstrators ample alternative methods of
communicating their message either from across the street with
placards or on the church sidewalk with leaflets and conversation.

D. The Requirement of Narrow Tailoring
As stated above, courts prohibit restrictions on speech that are
"substantially broader than necessary to achieve the government's
in terest"; n260 in the case of injunctions, restrictions must
"burden no more speech than necessary to serve a significant
government inter est." n261 The St. David's court failed to reach
this issue in depth, consid ering the facts insufficient to judge
whether the buffer zone in question was overbroad. n262
Articulating the need for an evidentiary hearing, it concluded that
buffer zone injunction cases involve too many unique facts simply
to rely on holdings from other courts re garding the appropriate
size and shape of the buffer zone. n263
- - -Footnotes- - -
n260. Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989).

- -End Footnotes- -
The ordinance at issue in Olmer prohibited all signs on public
property within fifty feet of religious premises during specified
times before, during, and after services. n264 As the Olmer court
pointed out, this language not only prohibits disruptive protests,
but also bans a person "from passively holding a sign or banner
that does not frighten children in any way"; n265 it would outlaw
"a Catholic priest ... display ing to his willing flock on the
cathedral sidewalk shortly before mass a [*304] sign that states:

'Abortion is Wrong.'" n266 Yet, the ordinance would not stop
protestors from handing children graphic pictures of aborted fe
tuses. n267 The Olmer court concluded that the ordinance therefore
failed in two respects: it "bans speech that is harmless to very
young children, yet potentially significant to adults, while
failing to prohibit other speech ... that may terrorize a child."

n268
- - -Footnotes- - -
n264. See Olmer, 23 F. Supp. 2d at 1095.

n265. Id. at 1101.

n266. Id.

n267. See id.

n268. Id.

- -End Footnotes- -
Although one might argue that parents can keep their children away
more easily from offensive leaflets than from large placards, it is
indisputable that the Olmer ordinance burdens a substantial amount
of harmless and even desirable speech. The situation highlights a
problem that many city councils have to face when trying to grapple
with this issue: an attempt to pass an all-inclusive ordinance to
avoid being labeled a content-based restriction will run headlong
into the narrow-tailoring requirement. City leaders in Olmer
contended that they simply did the best they could, n269 but the
court countered with two arguments of its own.

- - -Footnotes- - -
n269. See id. at 1102.

- -End Footnotes- -
First, according to the court, the goal of protecting children may
excuse a content-based restriction. n270 Thus, a city may have the
power to ban only gruesome signs and communication that might scare
chil dren without burdening other speech. Secondly, the Olmer court
rea soned that a more limited buffer zone, such as that upheld in
Edwards, n271 could shield children from the pictures while
allowing demonstrations on most of the sidewalk outside the church.

n272 As this Note discussed earlier, n273 however, Edwards involves
only an eight-foot buffer zone around church entrances. Such a
narrow picket-free space likely would not protect children from
offensive signs. Although this small buffer zone does not serve a
governmental inter est, the reference to Edwards shows that some
type of buffer zone might be found constitutional, so long as it
meets the court's objec tions regarding overbreadth.

- -End Footnotes- -
The extension of Frisby's narrow tailoring rationale likely would
not assuage court's concerns with broad ordinances. The Frisby
Court noted that complete bans still might be narrowly tailored "if
each ac tivity within the proscription's scope is an appropriately
targeted [*305] evil." n274 In other words, such a complete
prohibition may be neces sary when "the medium of expression
itself" creates the evil. n275 In the case of residential
picketing, the Frisby Court held that targeting a cap tive audience
in a home is such an "offensive and disturbing ... form of ...

n275. Id. at 486 (quoting Members of the City Council v. Taxpayers
for Vincent, 466 U.S. 789, 810 (1984)) (internal quotation marks
omitted).

n276. Id. at 487.

- -End Footnotes- -
Although the captive audience doctrine speaks to the issue of the
government's permissible interest in protecting residential (or
church) privacy, in this context the doctrine seems to work more
like the secondary effects doctrine; n277 the secondary effects
doctrine allows the banishment of some evil to save an otherwise
content-specific or overbroad ordinance from unconstitutionality.

The question be comes whether focused picketing around a church is
so offensive and disturbing as to constitute an evil that must be
rooted out even if de sirable communication is destroyed along the
way.

- - -Footnotes- - -
n277. See supra text accompanying notes 263-68.

- -End Footnotes- -
The Olmer court apparently thought not, and ample reasons exist to
support that conclusion. The language of Frisby specifically ad
dresses residential listeners and seems to tap directly into the
home-as- castle idea, stating that even a solitary picketer could
"invade residen tial privacy" like a "stranger" who "lurks
outside." n278 A change in facts, the Court says, might prompt a
different outcome - for instance, when someone's home provides the
forum for a public meeting. n279 Even if the Frisby opinion does
encompass a wider variety of venues, it does not seem prudent to
allow the government to label so easily en tire classes of speech
evil and thus eliminate the good speech with the bad.

- -End Footnotes- -
Although one can argue for its application, the secondary effects
doctrine itself also fails to save church picketing bans for
similar rea sons. In City of Renton v. Playtime Theatres, Inc.,
n280 the Supreme Court announced the idea of secondary effects in
upholding a zoning ordi nance that prohibited adult movie theaters
from locating within 1000 feet of a church, park, school, or
residential zone. n281 Although the ordinance appeared content-
based on its face, the Court concluded instead that it was content-
neutral because the government's "'predominate concerns' were with
the secondary effects of adult thea [*306] ters," such as
increased crime and lower property values, rather than with the
theaters themselves. n282 Even though the ban eliminated adult
establishments from ninety-five percent of the city, n283 the Court
held that reasonable alternative channels for the communication
remained. n284
- - -Footnotes- - -
n280. 475 U.S. 41 (1986).

n281. See id. at 47.

n282. Id.

n283. See id. at 64 (Brennan, J., dissenting).

n284. See id. at 50.

- -End Footnotes- -
Although the Court has never addressed Renton's applicability to
non-sexually explicit communication, a plurality in Boos v. Barry
n285 ap peared to extend the secondary effects doctrine to
political speech. n286 Boos deals with a restriction on speech
critical of foreign governments outside their embassies. n287 While
a majority of the Court found the restriction unconstitutional,
n288 at least six Justices may have thought that analysis under the
secondary effects doctrine was relevant. n289
- - -Footnotes- - -
n285. 485 U.S. 312 (1988).

- -End Footnotes- -
Some lower courts have shown greater reluctance to apply the
secondary effects doctrine to political speech, n290 and the
landscape remains hazy. The Third Circuit wrote in Rappa v. New
Castle County n291 that it had "some doubts" about extending the
doctrine and struck down a Delaware law that exempted
advertisements for local cities, industries, and meetings from
regulations banning all signs within twenty-five feet of state
highways. n292 The Rappa court noted in its decision that a Supreme
Court majority "has never explicitly ap plied the analysis to
political speech." n293 However, in a case regarding a Maine
statute that prevented door-to-door solicitation by police of
ficers, the First Circuit mentioned that the law might be content-
neu tral because it sought to prevent secondary effects such as
implied coercion. n294
- - -Footnotes- - -
n290. See David L. Hudson, Jr., The Secondary Effects Doctrine:

- -End Footnotes- -
In the context of residential picketing, at least a few courts have
combined Frisby and Renton to devise a rationale that allows some
pick ets but not others. The Rhode Island Supreme Court cited
Frisby and Renton in upholding an antipicketing ordinance that had
been passed in reaction to abortion protests and excepted from
prohibition pro [*307] tests related to activities inside a
residence. n295 Mentioning Renton, a New Jersey court in Murray v.

Lawson n296 allowed an injunction to stand, even though it had the
effect of prohibiting a particular group of anti-abortion
demonstrators from picketing in front of a doctor's residence. n297
Similarly, in Valenzuela v. Aquino, n298 a Texas court found that
an injunction dealing with the secondary effects of picketing did
not violate the content-neutrality requirement. n299
- - -Footnotes- - -
n295. See Town of Barrington v. Blake, 568 A.2d 1015, 1019-20 (R.I.

- -End Footnotes- -
Courts are less likely to embrace Renton as a rationale outside the
context of focused residential picketing. For example, the District
of Columbia Circuit did not accept as a constitutional secondary
effect "the threat of listeners' violent reaction" to a Ku Klux
Klan march. n300 The court pointed to Forsyth County v. Nationalist
Movement, n301 which held that "listeners' reaction to speech is
not a content-neutral basis for regulation." n302 Secondary effects
of the type discussed in Renton, the court said, do not relate to
the expressive activity itself. n303
- - -Footnotes- - -
n300. Christian Knights v. District of Columbia, 972 F.2d 365, 374
(D.C. Cir. 1992).

n301. 505 U.S. 123 (1992).

n302. Id. at 134.

n303. See Christian Knights, 972 F.2d at 373.

- -End Footnotes- -
Although some precedent exists to support a secondary effects
defense for picketing regulations, the generally lukewarm court
reac tion indicates that this doctrine might not justify a
restriction like the Lincoln ordinance in Olmer. After all, judges
have good reason to limit any new applications of the doctrine.

Would-be censors are quick to invoke the secondary effects doctrine
in their attempt to se cure for their cause the far less rigorous
scrutiny of content-neutral ity. n304 Without a bright-line
limitation, such as the original Renton zoning control of adult
businesses, this expansive doctrine could sub sume virtually every
form of expression.

Rev. 291, 322-23 (1995) (arguing that the secondary effects
doctrine could apply to the battle against "aggressive
panhandling").

- -End Footnotes- -
[*308]
V
Constructing a Constitutional Ban on ChurchPicketing
Preceding sections of this Note discussed the inadequacies of spe
cific case law surrounding bans on communication outside churches,
but reasoned that standard time, place, and manner analysis
generally could apply. Part IV.A demonstrated that the requirement
of content neutrality presents no problems for such broad
ordinances. Part IV.B argued that the protection of children (as in
the Olmer decision) and the protection of "religious privacy" - if
it does not violate the Estab lishment Clause - represent the most
credible governmental interests at stake in these ordinances. As
Part IV.C showed, the requirement of ample alternative channels for
communication presents no barrier to these ordinances, depending on
the specific language in question. Perhaps the most difficult
requirement for local governments to meet in drafting such an
ordinance is that of narrow tailoring, as Part IV.D pointed out.

A. Traditional Narrowly Tailored Schemes Appear Either Ineffective
or Undesirable
With the demise of the Lincoln restriction in Olmer, the question
remains whether any such ban can be written to meet the concerns
outlined by the Olmer court, and if so, whether the result would be
constitutionally desirable. The answer is probably no on both
counts.

Before deciding whether a restriction is narrowly tailored to serve
a significant governmental interest, one must first specify that
interest. In Olmer, the court and the authors of the ordinance
appeared to fo cus on the protection of children, as discussed
above. After making this determination, the Olmer court easily
refuted the city's rationale by stating obvious ways in which the
ordinance was both over- and underinclusive. n305 Attacking the
problem from either of these angles only exacerbates the
deficiencies on the other side of the equation. An ordinance that
makes communication restrictions within the buffer zone more
absolute risks violating the ample-alternatives re quirement.

Changing the restriction so that it covers less speech or a smaller
geographical area erodes any protection of children the gov ernment
may have hoped to create.

- -End Footnotes- -
As the Olmer court suggested, it may be possible to abandon the
goal of content neutrality and ban only those images that would of
fend children. However, the ubiquity of children presents a
problem. The tactic of "protecting children" plays to adults'
sympathies, but po [*309] tentially leaves everyone else with
fewer opportunities to contribute to the marketplace of ideas. Even
narrowly tailored restrictions, if appli cable to all the
environments in which one is likely to encounter chil dren, quickly
could result in a narrowing of speech everywhere. The Olmer court
cited Reno v. ACLU n306 for the proposition that the govern ment
has an interest in protecting children from harmful materials, n307
but that case addresses communication delivered to private homes,
not communication encountered on a public sidewalk. n308
- - -Footnotes- - -
n306. 521 U.S. 844 (1997).

n307. See Olmer, 23 F. Supp. 2d at 1101.

n308. See Reno, 521 U.S. at 849-53. It is also worth noting that
the Court struck down the legislation in question despite concerns
about protecting children. See id. at 875.

- -End Footnotes- -
Other governmental interests mentioned earlier in this Note hold
several advantages over the protection of children. Protecting
religious privacy or captive audiences entering churches allow
restric tions through the use of content-neutral language. However,
problems remain. If protecting religious privacy or the right of
indi viduals to worship as they please constitutes the government's
primary interest, practicality requires one eventually to revisit
the issue of pro tecting children. Nothing about the relatively
peaceful picketing in Olmer deters adults from attending a church
except for the protest's potentially detrimental effect on their
children.

The language of the captive audience doctrine, on the other hand,
is more expansive, focusing on the psychological effect that even a
solitary, peaceful picketer can create. n309 Although this expan
siveness apparently fits the bill for banning picketing outside
churches, that same characteristic makes extending the doctrine un
desirable. One could argue that churches fundamentally differ from
other places that hold captive audiences, but enough similarities
exist that the recognition of nonresidential captivity could allow
unwanted camel noses under the free speech tent.

- - -Footnotes- - -
n309. See supra Part IV.B.3.

- -End Footnotes- -
B. An Alternative? Preventing Coercion
A better way to protect both churchgoers and First Amendment values
focuses on the true heart of the matter: coercion. Targeted
protesting can cause audience members to adopt outwardly a differ
ent viewpoint on some public issue, not because of the idea's
merit, but because of the coercive pressure the protest itself
creates. n310 In [*310] the case of focused picketing around a
church, coercion obviously exists when members of the congregation
must alter or abandon the way in which they treat their
constitutional rights.

- - -Footnotes- - -
n310. See Anne D. Lederman, Comment, Free Choice and the First
Amendment or Would You Read This If I Held It in Your Face and
Refused to Leave?, 45 Case W. Res. L. Rev. 1287, 1299 (1995).

Lederman examined Supreme Court cases involving targeted protests
in the labor relations, abortion clinic, schoolhouse, and
courthouse settings. See id. at 1299-1321. She concluded that while
regulating speech according to its coercive value seems to violate
the First Amendment, the Court seemed willing to accept
coerciveness as a valid factor when it invades "the target's
privacy interests in retaining free choice in matters related to
the protesters' activity." Id. at 1322.

- -End Footnotes- -
In his Frisby dissent, Justice Brennan argued that certain
activities related in the record of the case, such as the large
number of protes tors, the shouting and name calling, the
trespassing, and the blocking of exits, seemed coercive. n311
Brennan termed these examples "intru sive and coercive abuses" n312
of free speech rights and stated that the government can neutralize
such abuses through restrictions. "It is the intrusion of speech
into the home or the unduly coercive nature of a particular manner
of speech around the home that is subject to more exacting
regulation." n313 Justice Brennan argued that a regulation is not
narrowly tailored under Vincent, if it could be written to
eliminate coercive elements of the expression without completely
banning the picketing. n314 His dissent contended that a government
can constitu tionally regulate the number of picketers, the hours
of picketing, and the noise level, thereby "neutralizing the
intrusive or unduly coer cive aspects of picketing around the
home," n315 yet leaving room for free speech.

- -End Footnotes- -
The captive audience theory accepts the idea of protecting the
targets of protests from the coercive speech. For Justice Brennan,
however, the Frisby majority went too far by allowing the notion
that a solitary demonstrator - the lurking stranger - induces a
psychological and thus coercive reaction. n316 This weakness of the
captive audience doctrine - the blind notion that any home-bound
captive audience faces coercion regardless of a protest's
characteristics - is perhaps why courts refuse to extend it beyond
homes. The standard captive audi ence theory simply encompasses too
much behavior, concentrating on the status of the audience and
assuming the effect.

- -End Footnotes- -
Whether coercion actually occurs logically depends on the nature of
both the protest and the audience. In many environments, it would
seem to take more than the solitary picketer to produce any sort of
undue coercion. For example, it is doubtful that the hapless defen
dant in Hogan looking to "up [his] ante" of Christians coerced any
one, even if his conduct had fallen under the court's definition of
"focused picketing." n317 On the other hand, the various affidavits
and [*311] public statements of parents in the Olmer case
demonstrate that larger groups are better at coercing children and
thereby parents. Accord ing to Justice Brennan, a "carefully
crafted ordinance" should elimi nate the coercive aspects of such
pickets without eliminating free speech altogether. n318
- - -Footnotes- - -
n317. City of Prairie Village v. Hogan, 855 P.2d 949, 951 (Kan.

1993).

n318. Frisby, 487 U.S. at 496 (Brennan, J., dissenting).

- -End Footnotes- -
It is probably true that a permissible restriction designed to stop
such coercion may look like the regulation that the Olmer court
envi sioned when imagining a more narrowly tailored ordinance.

Given the fact that children succumb to coercion much more easily
than adults, in the end a ban with the stated goal of stopping
coercion may look like a ban with the goal of "protecting
children," but with one important difference: the basis of the
restriction would not rest upon the problematic justification of
protecting children everywhere, pro tecting all captive audiences,
or eliminating all-pervasive secondary ef fects. Most importantly,
this shift in focus at least would require plaintiffs to make a
showing that someone faces coercion from dem onstrators. This
probably would not be possible, for instance, if the protestors in
Olmer merely handed graphic leaflets to adults and did not
communicate with children.

A coercion doctrine could run into expansiveness problems of its
own. For example, parading demonstrators could be said to coerce
pedestrians from crossing the street at a particular corner.

Abortion protestors carrying graphic signs outside a doctor's
favorite barber shop could frighten children, requiring parents to
find another hair stylist. These cases are distinguishable,
however, because they do not involve the same type of
constitutional rights as Olmer. There is a dif ference between
conduct that forces others to abandon or to signifi cantly alter
the way in which they exercise constitutional religious rights and
the unavoidable aspects of living in a community alongside people
with whom you may disagree. n319 Any potential balancing test would
have to measure the constitutional importance of the impli cated
rights.

- - -Footnotes- - -
n319. Another idea is to restrict picketing to the site of the
activity under protest, but this argument does not resolve the
issue. Protestors could claim that they are not picketing a doctor
in a church, but rather they are protesting that the church allows
such a person within its walls. Thus, any site could become the
site of an activity under protest.

- -End Footnotes- -
The coercion doctrine that Justice Brennan described in his Frisby
dissent therefore provides an alternative rationale for banning
exactly what the city in Olmer wanted to restrict without
overburdening protes tors' free speech rights. The resulting
ordinance still must be nar rowly tailored to meet the goal of
reducing coercion and further protecting constitutional expression.

In a time when demonstrators mount often-harassing pickets in
attempts to persuade others to [*312] change their viewpoint,
focusing on the true evil - coercion - would provide effective
protection for the rights of citizens on either side of the picket
line. Curtailing coercion would serve society better than either
governmental inaction when the speech fails to fall within ex
isting categories, or governmental overstepping should a court
broaden existing doctrines.

Conclusion
The effectiveness of focused protesting wherever a doctor who
performs abortions travels in the community is great enough that
the tactic is not likely to disappear. Even if such protests cause
no social change, they generate publicity as witnessed in both
Olmer and St. David's. n320 As legislatures attempt to solve the
problems that arise when one form of expression, such as picketing,
infringes on other forms of expression, courts must balance
carefully the opposing First Amendment freedoms. This wariness is
apparent in the Olmer deci sion, where the court discussed problems
with the city ordinance under the current doctrine. The court in
St. David's, on the other hand, was perhaps too quick to agree that
the injunction under review could constitute a reasonable time,
place, and manner restriction. However, neither solution is
satisfactory. Rather than an outcome-de terminative forum analysis,
a more flexible analysis based on the ideas of coercion, as
expressed by Justice Brennan in Frisby, would lend itself to a
careful weighing of the constitutional interests involved in these
questions while continuing to protect vigorously the freedom of
speech.

- - -Footnotes- - -
n320. On a regular basis Fred Phelps (no relation to the author),
the leader of the Westboro Baptist Church, captures the national
media spotlight with his protests outside of churches. A search in
LEXIS's News Group File, Most Recent Two Years for the names Fred
Phelps and Westboro generates more than 100 hits from newspapers
and magazines across the country. All too often, the press focuses
on the sensational activities of fringe groups that express extreme
points of view, potentially misleading the public in their
perceptions of what constitutes acceptable behavior. Groups such as
the Westboro Baptist Church thrive on publicity, good or bad, and
cameras that turn toward their expressions of hatred only fuel
their conduct. As one weary newspaper in Phelps's home state of
Kansas put it: "Over the years, we have grown tired of
editorializing against the nauseating, hateful ti rades of Fred
Phelps. Criticism does not deter Phelps; in fact, it seems to
invigorate him." Perry Young, A Tale of Two Phelpses, Asheville
Citizen-Times (Asheville, N.C.), Dec. 11, 1998, at A10 (quoting
Ottawa Herald of Ottawa, Kansas).